If the surety company had paid the judgment to Mac Arthur Brothers Company and then MacArthur Brothers Company had paid the identical money back to the surety company and received therefor the assignment of the indemnity agreement given by Mary Crage to the surety company, there would seem to be no doubt of the plaintiff’s right to recover. Although not done directly, that, as it seems to me, was the effect of the arrangement. The purpose of the transaction was to enable the plaintiff to recover directly its damages resulting from the default of the sub-contractor, of the person who had indemified the surety company which was immediately liable to the plaintiff. If the transaction does not have this effect, it may be very difficult for the plaintiff now to recover its damages against any one. It seems to me that we can give effect to the intention of the parties, and that the defendant will not unjustly be harmed thereby.
McLennan, P. J., concurred.
Judgment affirmed, with costs.